People v Pena

[*1] People v Pena 2016 NY Slip Op 51664(U) Decided on November 16, 2016 Criminal Court Of The City Of New York, Bronx County Pitt, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 16, 2016
Criminal Court of the City of New York, Bronx County

The People of the State of New York, Plaintiff,

against

Daniel Pena, Defendant.



2002BX029193



Appearances of Counsel:

For the People: By ADA Andrew Zapata, Darcel D. Clark, District Attorney of Bronx County

For the Defendant: Jay Heinrich, Esq., Heinrich Law Group, P.C.
Bahaati E. Pitt, J.

Defendant Daniel Pena seeks an order vacating his two judgments of conviction, pursuant to Criminal Procedure Law § 440.10(1)(h), or, in the alternative, a hearing, pursuant to Criminal Procedure Law § 440.30(5). Defendant makes this motion on the grounds that the judgment was obtained in violation of his right to the effective assistance of counsel, in that his attorney allegedly failed to negotiate a better plea on defendant's behalf and failed to inform him of the immigration consequences that would flow from his guilty plea to two counts of Criminal Possession of a Controlled Substance in the seventh degree (Penal Law § 220.03) and sentencing him to time served. Under Docket No. 2002BX029193, defendant was charged with Criminal Possession of a Controlled Substance in the third degree (Penal Law § 220.16 [1]), a class 'B' felony, Criminal Possession of a Controlled Substance in the fifth degree (Penal Law § 220.06 [1]), a class 'D' felony, and Criminal Possession of a Controlled Substance in the seventh degree (Penal Law § 220.03), a class 'A' misdemeanor. Under Docket No. 2002BX039276, defendant was charged, acting in concert with two co-defendants, with Criminal Possession of a Controlled Substance in the fifth degree (Penal Law § 220.06 [1]), a class 'D' felony, Criminal Diversion of Prescription Medication and Prescriptions in the fourth degree (Penal Law § 178.10), a class 'A' misdemeanor, Criminal Possession of a Controlled Substance in the seventh degree (Penal Law § 220.03), a class 'A' misdemeanor, and Loitering in the first degree (Penal Law § 240.36), a class 'B' misdemeanor.

Defendant's motion to vacate his two judgments of conviction, pursuant to Criminal Procedure Law § 440.10 (1)(h) is DENIED.

CPL 440.10(1)(h) reads as follows:

1. At any time after the entry of a judgment, the court in which it was entered may, upon motion of the Defendant, vacate such judgment upon the ground that:[h] The judgment was obtained in violation of a right of the Defendant under the constitution of this state or of the United States.

"There is a presumption of regularity which attaches to judgments of conviction. In order to overcome that presumption and entitle a Defendant to a hearing on a motion to vacate the judgment pursuant to CPL 440.10, the Defendant has the burden of coming forward with allegations sufficient to create an issue of fact as to matters not appearing on the record of the underlying conviction." (People v. Crippen, 196 AD2d 548, 549, 601 N.Y.S.2d 152 [2nd Dept 1993] lv denied 82 NY2d 848, 627 N.E.2d 522, 606 N.Y.S.2d 600 [1993]; see also People v. Cruz, 14 NY3d 814, 816, 927 N.E.2d 542, 901 N.Y.S.2d 122 [2010]; People v. Andrew, 1 NY3d 546, 804 N.E.2d 399, 772 N.Y.S.2d 235 [2003]; People v. Velasquez, 1 NY3d 44, 801 N.E.2d 376, 769 N.Y.S.2d 156 [2003]; People v Bogan, 78 AD3d 855, 911 N.Y.S.2d 166, 2010 NY Slip Op 8127, 2 [2nd Dept 2010] lv denied 16 NY3d 742, 942 N.E.2d 1048, 917 N.Y.S.2d 623 [2011]).Where a defendant's complaint about counsel is predicated on factors that do not appear on the face of the record such as counsel's strategy, advice or preparation, the defendant must raise his or her claim of ineffective assistance of counsel via a CPL 440.10 motion (see People v Denny, 95 NY2d 921, 923 [2000]; People v Love, 57 NY2d 998, 1000 [1982]).

The Sixth Amendment to the U.S. Constitution and Article 1, § 6 of the New York Constitution both protect a defendant's right to counsel at a criminal trial. Under the federal standard for asserting a claim of ineffective assistance of counsel, a defendant "must show that counsel's representation fell below an objective standard of reasonableness" and "that the deficient performance prejudiced the defense" (Strickland v Washington,466 US 668, 687-688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 [1984]). The New York standard of effectiveness requires, at a minimum, that a defendant be afforded "meaningful representation" (People v. Baldi, 54 NY2d 137, 147, 429 N.E.2d 400, 444 N.Y.S.2d 893 [1981]; People v. Benevento, 91 NY2d 708, 713, 697 N.E.2d 584, 674 N.Y.S.2d 629 [1998]; People v. Saint Hilaire, 5 Misc 3d 1023[A], 799 N.Y.S.2d 163, 2004 NY Slip Op 51519[U] [Sup. Ct., New York Co. 2004]). "The phrase 'meaningful representation' does not mean 'perfect representation.'" (People v Benevento, 91 NY2d 708, 712 [1998], quoting People v Aiken, 45 NY2d 394, 398 [1978]; see also People v Cummings, 16 NY3d 784, 785 [2011]; People v Modica, 64 NY2d 828, 829 [1985]). "So long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, the constitutional requirement will have been met." (People v Baldi, 54 NY2d at 147; see also People v Oliveras, 21 NY3d 339 [2013]; People v Koki, 74 AD3d 987, 987-988 [2d Dept 2010]).

The United States Supreme Court held in Padilla v Kentucky, 559 US 356 (2010) that the Sixth Amendment requires defense attorneys to inform criminal defendants of the deportation risks of guilty pleas. However, the United States Supreme Court and the New York Court of Appeals declined to retroactively apply the seminal holding in Padilla to persons whose convictions became final before Padilla, which was decided on March 31, 2010 (see Chaidez v United States, 133 S Ct 1103; People v Baret, 23 NY3d 777, 782). In New York State, "judgment becomes final 30 days after sentencing, when the defendant's automatic right to seek [*2]direct appellate review of the judgment expires pursuant to CPL 460.10 (1) (a)." (People v. Varenga, 26 NY3d 529, 538 [2015]). The defendant entered his pleas of guilty on September 6, 2002. Defendant's conviction became final, at the latest, on October 6, 2003, "the last date on which he would have been permitted to seek leave to file a late notice of appeal" (People v Andrews, 108 AD3d 727, 728 [2013], affd 23 NY3d 605 [2014]; see CPL 460.10 [1] [a]). Hence, the Padilla holding does not apply to this matter.

Prior to Padilla, the New York Court of Appeals had determined that an attorney's failure to advise their client of the then collateral consequence of deportation did not constitute ineffective assistance of counsel (People v. Ford, 86 NY2d 397, 404 (1995); People v. McDonald, 1 NY3d 109, 114 [2003]; contra People v Peque, 22 NY3d 168 [2013][holding that trial courts must warn noncitizen defendants of deportation risks associated with felony guilty pleas]). Accordingly, the alleged failure of the defendant's attorney to properly advise defendant of the possible deportation risks flowing from his pleas would not have constituted ineffective assistance of counsel under the United States or New York Constitutions, and, as such, this part of defendant's motion is denied.

Defendant's argument that his attorney failed to negotiate a better offer is unavailing and fails to satisfy both the first prong of the Strickland analysis and the New York standard of effectiveness - to wit, "meaningful representation" (Baldi, 54 NY2d at 147). The evidence submitted on this motion demonstrates that defendant was afforded competent, meaningful and effective representation. The record reflects that Defendant's attorney negotiated an extremely favorable plea bargain for defendant by securing a dismissal of several felony drug charges, including a class 'B' felony, under two separate docket numbers, in return for defendant's guilty plea to two class 'A' misdemeanor drug charges and a sentence of time served as opposed to the considerably longer sentence of incarceration he faced at trial if found guilty of the various felony drug charges. Indeed, defendant received "meaningful representation" to satisfy the New York standard of effectiveness when he obtained an extremely favorable disposition for both docket numbers (Baldi, 54 NY2d at 147; see People v Santana, 36 Misc 3d 1201(A), 957 N.Y.S.2d 266; 2012 NY Slip Op 51144(U) [Sup. Ct., Bronx Co. 2012][finding that defendant received "meaningful representation" under the New York State standard for effective assistance of counsel when he received an advantageous plea promise).

Furthermore, defendant has failed to establish that he suffered any prejudice under the second prong of the Strickland analysis. In order to establish prejudice, defendant must demonstrate that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." (McDonald, 1 NY3d at 115, quoting Hill, 474 U.S. at 59; Picca, 97 AD3d 170, 947 N.Y.S.2d 120, 2012 NY Slip Op 4368, **5, 2012 NY App. Div. Lexis 4304, *15-16). Defendant must plead necessary facts to establish that he would have gone to trial (McDonald, 1 NY3d at 115). "In light of the primary importance that aliens may place upon avoiding exile from this country," in assessing prejudice under the second prong of the Strickland test, the court must weigh not only the strength of the People's evidence and the potential sentence a defendant faces if convicted after trial, but also, "the particular circumstances informing the defendant's desire to remain in the United States" (People v Picca, 97 AD3d 170, 183-184). Here, defendant Pena argues that he would have asked his attorney to seek a better offer had he known of the deportation risks. Yet, defendant has supplied [*3]no facts, or argued for that matter, that he would have gone to trial had he been aware of the immigration consequences of a guilty plea. Conversely, the New York City Police Department laboratory analyzed 34 of the 124 blue pills marked "Percocept" and concluded that these pills were indeed oxycodone. Additionally, defendant faced a lengthy incarceration if he had he been found guilty of the serious felony drug charges. Consequently, defendant has also failed to meet the second prong of the Strickland analysis and his motion must be denied.

Defendant has failed to establish that his counsel failed to advise him of the immigration consequences of his pleas. Defendant's allegation is supported only by defendant's self-serving affidavit. In addition, the affirmation of defendant's current counsel states only that defendant's former counsel did not recall representing the defendant or the defendant. Defendant's July 2016 Supp. Aff. ¶ 25. Pursuant to CPL § 440.30(4)(d), a court may deny a motion without a hearing where the allegation of fact is made solely by defendant and unsupported by any other affidavit or evidence. Furthermore, pursuant to CPL § 440.30(4)(b), a court may deny a motion without a hearing where the moving papers fail to substantiate all the essential facts.

Accordingly, defendant Pena's motion to vacate his two judgments of conviction, pursuant to Criminal Procedure Law § 440.10 (1)(h) is DENIED.

This constitutes the Decision and Order of the Court.

Dated: November 16, 2016

Bronx, New York

E N T E R:

_______________________________ Bahaati E. Pitt, J.C.C.